Drug-testing civil trial opens

To test or not to test? After more than two years of sparring, the opposing sides of the Tulia Independent School District drug-testing question met for the main event Monday.

The civil trial of Hollister Gardner and his cousin Molly Gardner versus the school district and the individual members of its board of trustees opened in Amarillo's U.S District Court with Judge Mary Lou Robinson presiding. At its core is whether the public good overwhelms privacy issues and constitutional protections against illegal searches, according to documents filed in the case.

The Gardners are challenging the district's policy of making submission to drug testing a prerequisite for participation in extracurricular activities in Tulia's junior high and high schools.

Ted Ross is one of two attorneys from the Texas Civil Rights Project representing Molly Gardner, 16. He he began opening statements by giving his definition of what the case is not about.

Efforts to eradicate drugs in schools should be encouraged, Ross said. But there is no drug epidemic in Tulia schools. There is nothing to justify a student being "pulled out of school for up to an hour and having a person listen to her urinate. Nothing to warrant this invasion of privacy," he said.

One of two attorneys for the school district, Jeff Rogers of the Houston law firm of Feldman and Rogers, said the case is all about drugs.

It is about the responsibility of the school district to protect students from the ravages of drugs, he said.

As far as constitutional rights, he said, there is little question that children in public schools enjoy fewer rights than adults in the outside world.

Hollister Gardner, 20, represented himself in the proceedings but said he also represented other students asked to submit to drug tests "as the price of admission to public schools."

In his opening statements, Hollister Gardner said he is asking Robinson to grant injunctive relief ending the program and unspecified amounts of money for the cost of the trial and compensatory damages.

Molly Gardner was the first witness in the trial.

She described a rural upbringing not unlike many in the Panhandle and extensive participation in extracurricular activities. During her 1996 eighth-grade year, Molly was informed by school officials that those activities, such as band and athletics, no longer would be an option unless she submitted to "mandatory suspicion-less drug testing," she said.

Due to an abatement of the policy in her case by the school board, Molly Gardner continued to participate in extracurricular activities. However, the school board lifted the abatement in June, leading to a temporary injunction from Robinson that allows Molly Gardner to continue as one of Tulia High School's two drum majors.

School superintendent Mike Vinyard took the stand next, testifying about why and how the testing policy was implemented in January 1997.

Factors contributing to Tulia beginning the tests included court rulings allowing the practice in some instances and a 1994 Texas A&M University survey of student drug use statewide, Vinyard said. Also contributing were conversations with law-enforcement officials about local drug use and a 1995 drug bust in Tulia that netted several former Tulia High students, he said.

The most significant finding in the survey was that 27 percent of Tulia students said they had used illegal drugs in their lifetimes, Vinyard said.

Designing the policy stretched from July to November 1996. During that time there were two readings of the proposed plan and a public hearing, due to the sensitive nature of the project, the superintendent said.

The final policy emerged with sanctions for a positive test limited to denying access to the "privilege" of participating.

"They are not disciplinary or punitive," Vinyard said. "The most severe is removal from extracurricular activities."

"Suspicion-based" testing is included in Tulia's strategy to battle drugs but is not broad-based enough for the deterrent effect officials are seeking, Vinyard said.

Gary Gardner, Hollister's father, was a school board member while the policy was being contemplated, and he said he opposed it.

He testified Monday that Vinyard came to the board saying the Supreme Court had ruled in favor of testing and presented a handout from a company soliciting to test Tulia students to back that up.

"I was opposed because Tulia is one of the cleaner towns," Gary Gardner said.

Hollister Gardner called himself as a witness.

He testified that he felt the district took a hard-line attitude toward him when it had to make discretionary decisions concerning excused absences.

His grade-point average slipped during his senior year, as he was not allowed to make up work missed to file his lawsuit and attend daytime board meetings concerning his case, Hollister Gardner said.

Board president Jeanette Herring testified she supported the program because there was drug use in the district.

"I think any occurrence is a problem. Drugs are illegal, and I didn't think you have to wait until there is a high level to be a problem," Herring said.

The second Texas Civil Rights Project attorney, James Harrington, grilled Herring on what hard data the board relied on to decide on testing.